How courts around the world are upholding Indigenous rights

Authors

Margot VentonLawyer

Photo by Jon Watts

As many of you know, we’ve been working with Amnesty International Canada in support of the Ktunaxa Nation’s fight to keep Jumbo Valley wild. In October, we filed a brief with the court that detailed international case law upholding Indigenous rights and examples of how other countries live up to this responsibility.

If this sounds unfamiliar, let’s a take step back and recap the issue.

Keeping Jumbo wild

For more than two decades, a developer has tried to build a ski resort in Jumbo Valley. This is an area sacred to the Ktunaxa and known as Qat’muk, home of the Grizzly Bear Sprit.

Local opposition to the project is fierce. Community efforts to defend Jumbo Valley have included protests, the making of a documentary, and legal action. Ecojustice lawyers have been involved along the way too; last year we helped put the resort’s plans on ice — albeit somewhat temporarily.

But every time it looks like this project might finally be defeated, the developer finds a way to put it back on the table.

Now the Ktunaxa are looking to the courts to block this project for good. Today, they’ll be at the Supreme Court of Canada to argue that developing Jumbo Valley would violate their Charter right to freedom of religion. Jumbo Valley (Qat’muk) is essential to the spiritual beliefs and practices of the Ktunaxa people. The Ktunaxa fear that commercial development in the valley would cause the Grizzly Bear Spirit to leave, rendering their beliefs and ceremonies about the sprit meaningless.

The outcome of the Ktunaxa’s case will determine whether the Charter protects against state sponsored desecration of First Nations spiritual sites. If successful, it could trigger a wave of progressive policy that helps other Indigenous communities locked in similar land disputes across the country.

While this is the first time the Supreme Court will interpret the Canadian Charter of Rights and Freedoms through the lens of protecting spiritually significant natural places, other countries have already grappled with this very issue.

New Zealand offers a particularly compelling example.

Upholding Maori spiritual beliefs in New Zealand

In Maori cosmology, all natural and physical elements — mountains, rivers, animals and plants — of the world are related to one another and seen as sentient beings. These elements are interwoven in Maori stories, beliefs and rituals.

New Zealand has recognized the Maori’s connection to the land for more than three decades. In practical terms this means that decision-makers are required to consult with Maori over the impact of development proposals and in some cases reject them if they interfere with Maori values and spiritual relationships.

That’s not the only instance in which New Zealand courts have upheld Maori cosmology

The Te Urewera is a sacred forest to the Tūhoe people, an Indigenous group of the Maori. The forest breathes life into their culture and is considered a living ancestor. The battle over rights to this piece of land eventually went before the courts, which meaningfully considered the role Te Urewera plays in Maori culture and granted the area personhood (through the Te Urewera Act).

As a result, Te Urewera is considered a legal entity with same rights, powers duties and responsibilities as a person — similar in ways to corporate personhood.

These examples lay out the powerful ways New Zealand courts have recognized Maori culture and religion, and demonstrate how Canada’s approach to recognizing and fulfilling Indigenous rights is increasingly outdated.

What’s next?

Today, we will be attending the hearing in Ottawa to watch the case unfold at this final stage.

We’ve seen countless examples how governments around the world work to uphold and protect Indigenous rights. It is time for Canada follow suit.